Supreme Court OK’s $460,000 fee for OPRA request

The state Supreme Court today ruled[1] that a company seeking reams of land transaction information from Bergen County would have to pay more than $460,000 first, so that Social Security numbers can be blocked out.

At issue is a request to the Bergen County clerk by Data Trace Services, a technology company that operates land record databases for more than 200 counties in 25 states and sells electronic access to information it gathers, for 8 million pages of land title records (things like mortgage assignments, deeds, discharges, liens, etc.) dating back to 1984.

The records contain Social Security numbers, plus other information deemed as ‘personal identifiers.’ They are public documents, however. Data Trace wanted microfilm copies of more than 2,500 rolls of microfilm. Bergen County said it lacked the staff needed to comply with the request and that, due to privacy concerns, would have to hire a private company to convert the pages to print or another electronic format, then mask all SSNs, at a cost exceeding $460,000. Copying them without altering them would have run about $19,000.

The state’s Open Public Records Law generally calls for personal information to remain undisclosed, though the language gets a little fuzzy in records required to be kept by law.

Even though these records are required by law (not required to have SSNs on them, and in fact not allowed to have them since 2005), a 5-2 majority of the court ruled that OPRA’s privacy rules should be triggered because the documents also include names, addresses, signatures and marital status. They’re public records now, available for copying in county offices — but putting them online in searchable databases would “eliminate the practical obscurity that now envelops those records” and makes identity theft easier, the judges ruled.

Here are a few quotes from the ruling, written by Chief Justice Stuart Rabner, and the dissent, by Justice Barry Albin:

The majority: “Data aggregators like plaintiff submit that the public interest is well-served by releasing realty records. Through the use of technology, they can make title searches more efficient and less expensive, and thereby provide a benefit to the public. Rather than requiring title searchers to look through book after book of county records onsite, searches can be done at a computer terminal with the click of a mouse. Alongside that promise lays the problem this case highlights: easy access to unredacted records at a central, computerized location can also provide easy access to the SSNs on those records, which can lead to serious consequences.”

The dissent: “The majority opinion directly contravenes a clear and unambiguous statute mandating public accessibility to government records, N.J.S.A. 47:1A-5(a), and, in doing so, strikes a blow against governmental transparency in the electronic age. Today, the documents denied are realty records; tomorrow, with this case as precedent, other documents touching on important public policy issues will be kept sealed in the judicially-sanctioned realm of “practical obscurity” –- the dusty shelves of some storage room.”

The majority: “Neither of OPRA’s goals is furthered by disclosing SSNs that belong to private citizens to commercial compilers of computer databases. Were a similar request made by an investigative reporter or public interest group examining land recording practices of local government, this factor would weigh differently in the balancing test.”

The dissent: “The majority’s balancing test now requires an inquiry into the motives of the requestor, compelling county clerks and even judges to classify requestors into favored and non-favored categories. Who is to say that the bulk release of records to a journalist or academic rather than a commercial vendor will promote a greater public good that outweighs an individual’s privacy interests? The majority has turned the clear language of N.J.S.A. 47:1A-5(a) into a theory of relativity that might allow only preferred persons and causes access to bulk release of public records.”

The dissent: “Today’s majority opinion will significantly close the door to the Open Public Records Act and potentially have far-reaching adverse consequences to the dissemination of information maintained in state governmental offices.”